We have previously written about changes to the law, published on 15 April 2013 (Right to remain silent), that adversely altered a person’s right to remain silent when questioned by a police officer who thinks they have committed a serious crime.

Prior to those changes being introduced no adverse inference could be drawn from the fact that a person refused to answer questions put to them by the police and instead chose to remain silent. The changes allowed for a court to draw an unfavourable inference against a person if they did not mention when questioned by police something that they could reasonably have been expected to mention and which they then later relied on in Court as part of their defence.

As we indicated in our previous article the laws only apply to someone who is questioned by police in the presence of a lawyer. This is because police are required to give the person a special caution or warning that it may harm their defence if they do not mention when questioned something that they later rely on and the person is entitled to spend time with their lawyer having the implication of that warning explained to them.

Perhaps unsurprisingly, it appears that these laws have had the undesirable effect of causing lawyers to stay away from a police station when their client is arrested and being held in custody. Lawyers are taking the view that to attend a police station with their client would put the client in a worse position because if a lawyer is present the police can provide the suspect with the special caution. If the person then does not mention something they later rely on in Court the prosecution could argue that adverse inferences could be drawn against them.

It has recently been reported that these provisions have never been able to be used in a prosecution in New South Wales. Presumably, this is because lawyers have been staying away from police stations.

It has also been reported that the fact that lawyers are not attending police stations is making other aspects of the initial investigation more difficult and time-consuming for police.

In those circumstances the Law Society of New South Wales has apparently called for these provisions to be removed from the law. In many ways that appears to be appropriate. From the outset it appeared that these changes were aimed at undermining a long established right to remain silent when questioned by police. It now appears that the provisions have never actually been able to be utilised. That is, they simply do not appear to have achieved their intended purpose. Combined with the suggestion that lawyers not attending police stations has actually had the effect of creating difficulties for police in other aspects of their investigations then, at the very least, it appears it is time for these laws to be reviewed.